Writ of Habeas Corpus issued in Extradition – policy change?

On 7 April 2014 I wrote an article entitled ‘Extradition (or not) following appeal‘ on what happens when a requested person is not extradited within the required period as set down by statute. In Part 1 cases (following an unsuccessful appeal) a person must be extradited within 10 days of the decision becoming final or discontinued. S.36(3) sets out the meaning of ‘required period’:

“The required period is –

(a)        Ten days starting with the day on which the decision of the relevant court on the appeal becomes final or proceedings on the appeal are discontinued, or

(b)       if the relevant court and the Authority which issued the Part 1 warrant agree a later date, ten days starting with the later date.”

If a requested person has not been removed within the required period then under s.36(8) of the Extradition Act 2003 a requested person can make an application to be discharged.

If sub-section (2) is not complied with, and the person applies to the appropriate judge to be discharged, the judge must order his discharge, unless reasonable cause is shown for the delay.

The Crown Prosecution Service (CPS) – acting on behalf of requesting judicial authorities – have for years asserted the right to ‘finesse any application for a discharge’ by agreeing with the relevant court a later starting date, even after the required period has expired. Once an order had been made, the application for discharge under s36(8) can no longer be considered, thereby preventing the requested person from seeking their discharge.

In April 2014 such a scenario occurred in one of my cases that necessitated me applying for a writ of habeas corpus ad subjiciendum to ask the court whether an application for a discharge may be obviated by an agreement between the High Court and the Authority of the requesting state, reached after the end of the ten day period identified in s.36(2)(a).

On 8 May 2014 the Divisional Court (Moses, LJ & King, J.) heard oral submissions and reserved its judgment.

Today (27 June 2014) Lord Justice Moses (giving the lead judgment) concluded that the statutory scheme did not permit the right of a requested person to be discharged, to be circumvented by agreeing a later starting date after the expiry of the period identified in s.36(3)(a), unless reasonable cause is shown. In doing so he overturned two cases:

Kasprzak v Warsaw Regional Court, Poland (and two other cases) [2011 EWHC 100 (Admin).

The Queen on the Application of Hajda v Polish Judicial Authority [2013] EWHC 1080 (Admin).

In the instant case, Lord Justice Moses stated that where a requested person has not been extradited within the required period ‘there must be a hearing at which that issue [whether there is reasonable cause for the delay] can be determined. [10]

He stated:

 Such a conclusion is consistent with the long history of Extradition Acts over a period of 150 years: a succession of Extradition Acts has protected a requested person against the requesting state’s inertia in effecting removal. Since 1965, a requesting state must show reasonable cause for delay in effecting extradition.

Lord Justice Moses also held that it was unlawful for the CPS to apply for an extension of time after the required period for removal had expired. At paragraph 22 of the judgment he stated:

There is no warrant for reading into the provisions any implied power to extend the relevant period, after the expiry of the required period identified in s.36(3)(a). There is no provision for such an extension after the required period has expired. Once that period has expired, as I have said, sub-section (2) has not been complied with and the right to apply under s.36(8) is triggered.

So what happens now? In the instant case the Order of the court is that the case is remitted back to Westminster Magistrates’ Court for an application to be heard for discharge. Discharge must be granted unless ‘reasonable cause is shown for the delay’.

In terms of the effect on extradition practice, the CPS will now have to ensure that their applications for a new removal period are made before the end of the required period and if an application for discharge is made, this can no longer be scuppered by an ex parte application to the High Court.